Divorce in Islam
Islam views marriage as a lifelong commitment; however, if maintaining the marriage becomes untenable, divorce may be necessary. Typically, the husband initiates the divorce and forfeits his dowry. The least favored form of divorce is Talaq al-bida, where the husband declares “Talaq” three times in one instance, making it irrevocable. Caliph Hazrat Umar (RD) historically punished husbands who divorced their wives in this manner. Another irrevocable form is Talaq al-Bain, where the husband pronounces “Talaq” on three separate occasions, which is considered a more deliberate and thus more acceptable approach.
In the case of Talaq ar-Raji, the husband pronounces “Talaq” once and refrains from intimacy with his wife for three months. If he resumes marital relations during this period, even without her consent, the divorce is annulled. The exact duration of the iddah, or waiting period, is subject to debate among jurists. It is important that talaq is not pronounced while the woman is menstruating or experiencing postpartum bleeding, as her physical state may influence the husband’s decision. Most jurists agree that a pregnant woman can be divorced.
Following a triple divorce, it is considered unlawful and punishable for the former partners to reunite. If they wish to remarry, Islamic law requires the woman to first marry and divorce another person. This subsequent marriage must be consummated to determine if the former husband experiences any lingering feelings, such as jealousy. This practice, known as halala, was regarded as akin to adultery by Caliph Hazrat Umar (RD).
A wife can seek a divorce through the process of Faskh, which requires approval from a Qadi or court. The grounds for Faskh vary among different Islamic schools of law and may include apostasy, cruelty, lack of maintenance, disappearance, insanity, dangerous contagious diseases, and even incompatibility.
There is often a question regarding the disparity in the ease of obtaining a divorce between men and women. Concerns have been raised that if women were granted the power of unilateral divorce, it might lead to a significant increase in divorces. This perspective is based on the belief that women may experience emotional fluctuations that could influence their decision-making, such as irritability, depression, or heightened sensitivity to minor issues.
The Quran (4:28) outlines a process known as Khul, through which a wife can request a divorce from her husband, provided he consents and she is able to return part or all of the dowry she received. This process may require her to care for a child until it is weaned. Khul should not be pursued without serious consideration, as indicated by the saying of Prophet Muhammad (peace be upon him): “If any woman asks for a divorce from her husband without specific reason, the fragrance of Paradise will be unlawful to her.”
In cases where a husband accuses his wife of adultery without witnesses, he must swear an oath four times affirming the truth of his accusation. On the fifth occasion, he must invoke the curse of Allah upon himself if he is lying. This declaration places the wife at risk of punishment unless she can counter the accusation by swearing an oath four times in her defense and invoking the wrath of Allah upon herself if she is untruthful. The court may then intervene to dissolve the marriage.
Adultery laws often diverge from the Sunna and are a point of contention among fundamentalists. For instance, in Egypt, the penalty for an adulteress is a two-year prison sentence, while a man faces a six-month sentence only if the act occurred in the family home. If a man is caught with a prostitute, he is not punished but may be used as a witness against her.
If a woman is unable to obtain a divorce through the court or Khul, she may choose to apostatize to separate from her husband. This is feasible in India, where legal repercussions for apostasy are not enforced until an Islamic government is established.
Following a divorce, the woman remains in the matrimonial home until the iddah (waiting period) concludes. She is not permitted to leave, nor can the husband demand her departure. He is obligated to provide for her unless she has left his home without permission, or travelled without his consent.